Lawyers: AI is Coming for You

16/08/18 01:44

AI is sneaking in the back door. Lawyers are unaware.

The business of tax return preparation was cruelly decimated by the development of software programs that a taxpayer could run. The legal profession hasn't been subject to similar successful attacks. Familiarity with software that assists lawyers to organize and sift through documentation is increasingly a requirement for trial lawyers today. I doubt, though, that the ABA requires law schools to teach this software in order to maintain their accreditation. They should.Travel agents, journalism and other fields have fallen to disintermediation. So far, the legal system considers itself immune. There doesn't seem a way to disintermediate lawyers and clients. This is naive. AI can already do a halfway decent job in automatically writing news stories. Can automatic writing of say, a motion for summary judgment be far behind? Or Requests to Admit? Or interrogatories? Right now, "AI" is a paralegal farm in the Philippines (Baker & McKenzie) or online back offices in India (Office Tiger). But it's coming to the Cloud, if not the desktop, with mobile versions too.The practice of law can be divided into two categories, processing and performance. In the United Kingdom and some common law countries, the distinction is institutionalized by dividing the profession into solicitors and barristers. For now, those lawyers engaged in performance are safe. Trials are theater. Human actors will be necessary for the foreseeable future. But don't think that trial lawyers are safe: AI will move aggressively into every area but the trial. Trials themselves are now rare. First the number of jurors was reduced from twelve to six. Arbitrations are happily and efficiently decided by only three arbitrators. How long will it be before juries consist of only three members? The way you could make it happen would be to offer a defendant an incentive to waive his right to a full panel. Say, a cap on sentencing. It's just a question of time. And if you think this is impossible, remember that the rest of the world does without it.So much of the law can be reduced to a set of formulae. Let's take bond hearings. Despite the supposed availability of bail, pretrial detention (an Orwellian euphemism that means "no bail") will be granted where a person is a flight risk and poses a danger to the community.The question of whether an individual poses a danger to the community has been taken out of the judge's hands. The nature of the charge determines danger. If a defendant is charged with drug trafficking, he cannot argue that he is not a danger to the community because "drug trafficking isn't so bad." So, the presumption can only theoretically be rebutted. The next question is whether the accused is a flight risk. This is easily answered by recourse to statistics without any need for legal intervention. The average American homeowner, prior to 2009, owned his home for only seven years. Pull the accused's credit report. Has he moved more often than once in seven years? If so, by definition he lacks community ties (unless his moves have been within the neighborhood, the algorithm can take care of that by comparing postal codes). Hearings can be dispensed with; a magistrate will receive a report mandating detention. We can keep the illusion of procedural due process: the accused's lawyer will be given the opportunity to challenge the report for errors. Sometimes computers divide by zero.If you think this can't happen, think again. Even though the Supreme Court, after twenty years of uniformity, made the Federal Sentencing Guidelines advisory instead of mandatory, for that twenty year period federal sentencing was a tax return. Even though human lives are measured in years, the program took the extraordinary step of using the month as the unit of measure to make the system appear more like a tax return: Conviction? Check. Amount defrauded? Enter here. Criminal history? Choose the appropriate column. Sentence: (whrrr-whrrr): the judge was presented with a range of often no more than six months to sentence a defendant. The program could have split the difference and there would be no need for the judge.Processing is not protected. In the United States, the business of law is primarily the injury business. Some estimate that a full 40% of the cases in state and federal court relate to efforts to compensate the injured. But take a look at workmen's compensation, another area of the law that seeks to compensate the injured. How much is the claimant earning? What is his age? Calculate his injury in terms of percentage of impairment of bodily function? A number comes out. No lawyers needed, thank you very much.In a Chapter 7 bankruptcy, once you know the amount of the bankrupt estate, distribution is made according to a formula. If you think that lawyers are essential to the implementation of this formula, you are wrong. Probate law, like tax law, is already mostly a matter of specialized programs.Who is pressing for this disintermediation? Certainly not the lawyers. We are happy to let things stay as they are. The push will be made by the clients, in areas they control. Lawyers think that their bubble is safe from this intrusion. They are wrong.If you are a lawyer, you probably haven't heard of Procon. Procon is a risk assessment and minimization program for project managers. Lawyers don't use it. It's not taught in ABA-accredited law schools. But here's what one company spokesman said about the program:Before using ProCon, a claim management used to involve 10 people, usually highly paid lawyers, working 24 hours a day for 7 days. Now we can run a report from ProCon in response to a claim in minutes.On the last two claims we realised a cost avoidance benefit of approximately 1680 lawyer hours and avoided claims of $22M. --Head of Contracts, Major Oil Operator, AustraliaPrograms like Procon will drive disintermediation. Lawyers can either plan for the future or get hit by the bus of progress while crossing the road.Notes:1. In Bolivia, there are two "citizen judges" and one "professional judge" for each case.2. I don't own shares in Procon. Indeed, I don't even know if it is a public company and don't really care one way or another.3. I am unaware of a single federal criminal case in which an appellate court overturned a district judge's pretrial detention order. Appellate courts have ordered release in cases where they have had doubts about the ultimate conviction, or there was an intervening appellate decision that undercut a conviction, but that is different.4. You may claim that people move more often, or less often, than once per seven years. No problem. The algorithm can be modified. We trust Fair-Isaac with our financial affairs, why not trust them with our freedom? After all, you can challenge your credit report and many people do.5. This article contains solely the views of the author and of no other person.